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The case for due process in aviation regulatory enforcement 10 Sep 2025

The recent spate of incidents involving unruly passengers in Nigeria’s aviation sector has reignited public debate – not only about passenger conduct but also the regulatory response, which in some instances has been marked by swift sanctions later reversed or reduced. The case involving the musician popularly known as Kwam 1 on a ValueJet flight on 5 August, and that of Comfort Emmanson on an Ibom Air flight just days later, are the most recent examples. They are, however, far from isolated. Only weeks earlier, in June 2025, a dispute involving Senator Adams Oshiomhole and Air Peace made similar headlines.

What unites these episodes is not merely the behaviour of the passengers but the manner of the regulator’s intervention. Sanctions were announced almost immediately, only to be softened or cancelled days afterwards. Such reversals create the appearance of arbitrariness and undermine confidence in the regulatory process. While the instinct to act swiftly in the name of order and safety is understandable, regulation cannot be driven by the fickle currents of public opinion. It must instead be anchored in due process, with decisions grounded in structured investigations and duly constituted hearings.

By imposing instant sanctions without affording affected parties an opportunity to be heard – whether passengers, pilots, or airlines – the regulator risks not only breaching the constitutional right to fair hearing but also eroding public trust in its authority. Decisions that are quickly overturned project inconsistency, dilute deterrence, and ultimately fail to achieve the regulatory aim of discouraging misconduct.

It is important to emphasise that the challenge in this context does not lie in the absence of a legal or regulatory framework. Nigeria already has a robust regime under the Civil Aviation Act 2022. Section 58 of the Act expressly empowers the Nigerian Civil Aviation Authority (NCAA) to “by regulations prohibit certain acts which constitute unruly or indecent behaviour on board aircraft in or over Nigeria.” Pursuant to this mandate, the Nigerian Civil Aviation Regulations (NCAR) 2023 – particularly Part 17 – set out detailed provisions governing conduct on board aircraft and within airport terminals.

Regulation 17.89 criminalises unruly behaviour, broadly defining it to include smoking on board an aircraft or in restricted areas of a terminal; unauthorised use of mobile devices or electronic gadgets in flight; fighting or disorderly conduct; disobedience of lawful instructions issued by aircraft commanders, flight crew or ground staff; conduct amounting to nuisance or endangerment of flight safety; and tampering with aircraft equipment such as smoke detectors.
In addition, the regulations empower the aircraft commander or airport authority to take all necessary measures, including restraint, to manage unruly passengers. These measures are designed to secure the safety of aircraft, passengers, crew, and property, to maintain good order and discipline, and to ensure that offenders are properly handed over to competent authorities for prosecution.

The real gap, therefore, is not in the existence of legal instruments, but in their consistent and transparent application. Regulatory authority must be exercised through a structured disciplinary framework that minimises the risk of physical confrontation or public humiliation and ensures outcomes that are lawful, proportionate, and credible.

Crucially, disciplinary responses must not be driven by the shifting winds of public opinion or the immediacy of social media outrage. Online platforms, while powerful, often amplify emotional reactions, misinformation, and polarisation. Regulatory action that appears to be a concession to trending sentiments risks being reactive and unstable, rather than principled and evidence-based. Effective regulation requires decisions grounded in established processes, not in the transient passions of the digital sphere.

A critical element missing in the spate of instant regulatory reactions is the guarantee of fair hearing. Fair hearing is not a procedural luxury; it is a sine qua non of any valid adjudicatory process. Its reach is not confined to judicial proceedings but extends equally to administrative and quasi-judicial bodies – particularly where decisions bear directly on personal liberty, livelihood, or reputation. The Supreme Court affirmed this position in Olayioye v. Oyelaran (2019) 4 NWLR (Pt. 1662) 351, observing that: “It must be reiterated that enough cannot be said on the principle of fair hearing as the right is a fundamental right of a party to a dispute to be afforded an opportunity to present his case to the adjudicating authority. This authority dispersing arbitration or resolution of disputes need not be the regular court as we know it but anybody so composed and filling the gap adjudicatory.”

Against this backdrop, the failure of the NCAA and the Minister of Aviation and Aerospace Development to conduct proper hearings before imposing sanctions risk creating a perception of arbitrariness. Sanctions that lack the foundation of due process are not only susceptible to being overturned under judicial scrutiny, but they also weaken public trust in regulatory authority.

The consequences are far-reaching. First, arbitrary responses erode regulatory legitimacy: parties who feel unfairly treated are more likely to contest sanctions, resulting in expensive litigation and a cycle of reversals that diminishes confidence in the regulator’s competence. Second, such knee-jerk sanctions often yield inconsistent outcomes. One individual may face harsh punishment for a first offence, while another, under different public or political pressures, escapes with a mere caution. This inconsistency creates an uneven playing field, undermines deterrence, and discourages investment in the sector.

Ultimately, regulatory speed – though sometimes necessary in the public interest – cannot substitute for process. Speed without procedure sacrifices fairness. A proper hearing ensures that sanctions are lawful, proportionate, consistent, and justifiable, thereby strengthening, rather than weakening, regulatory authority.

Comparative practice reinforces this lesson. In the United States, the Federal Aviation Administration (FAA) operates a strict zero-tolerance policy for unruly passengers, but sanctions follow established procedure: a notice of violation is served and the passenger has an opportunity to respond and appeal to the National Transportation Safety Board. Similarly, the UK Civil Aviation Authority (CAA) channels most infractions into criminal prosecution, working with airlines and law enforcement to ensure that enforcement is grounded in existing legal processes, not ad hoc decrees. These models demonstrate that robust enforcement can coexist with fairness, and indeed that fair process enhances deterrence by ensuring that sanctions withstand legal and public scrutiny.

Closer to home, African jurisdictions are also embedding due process in aviation regulation. The South African Civil Aviation Authority (SACAA) maintains a structured enforcement process: alleged violations are first investigated and set out in a formal notice; the accused party is invited to respond; and an internal review mechanism exists before any sanction is finalised. In Kenya, the Kenya Civil Aviation Authority (KCAA) also integrates fair hearing by requiring written charges, opportunities for defence, and recourse to appeal under the Civil Aviation Act. These examples demonstrate that even within Africa – where regulatory environments may share similar institutional challenges – effective enforcement is achievable without discarding constitutional safeguards.

To align Nigerian regulatory practice with constitutional principles and international best standards, several reforms are imperative. Regulators should publish clear sanctioning procedures that spell out notice requirements, timelines for response, and opportunities for hearing. They should constitute independent panels or committees to hear infractions, thereby insulating decisions from perceptions of bias. A proportionality framework should guide sanctions, calibrating penalties to the gravity of misconduct rather than to shifting public sentiment. Equally important is the need to guarantee statutory appeal routes, so that regulated parties have recourse to an independent review. Finally, regulatory officers must receive training in administrative law and the principles of natural justice, with particular emphasis on the non-negotiable nature of fair hearing.

Discipline in the skies – or in any regulated sector – must never come at the expense of constitutional rights. To safeguard both safety and justice, regulators must ensure that sanctions are preceded by hearings that respect the principles of natural justice. Regulatory efficiency is not measured by the speed with which penalties are announced, but by the durability of those decisions under legal and public scrutiny. In this respect, fair hearing is not an inconvenience to regulators; it is the very foundation of their legitimacy.

Funmilayo Odude is Partner at Commercial and Energy Law Practice (CANDELP).